Citation NR: 9803119
Decision Date: 01/30/98 Archive Date: 02/03/98
DOCKET NO. 92-23 605 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for visual disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran had active service from April 1953 to March 1957.
This matter came to the Board of Veteransí Appeals (Board) on
appeal from a May 1991 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky. The case was last remanded by the Board in April
1996.
In an October 1997 rating decision, the RO denied as not well
grounded a claim for service connection for residuals of a
groin injury noting that the veteran had contended that he
had problems with his bladder, testicles, prostate gland and
kidneys as a result of the injury. Review of statements
received from the veteran indicates that he has alternatively
contended that he has problems with his bladder, testicle,
prostate and kidneys due to his exposure to radiation in
Operation CASTLE. In addition, he has stated that his claims
include genetic injury to his children due to his radiation
exposure. Also, in a statement received at the RO in October
1996 the veteran again referred to a claim for disability due
to radiation exposure causing genetic damage. Further, in a
statement received at the RO in February 1997, the veteran
stated that he was being treated for pernicious anemia and
that it was caused by exposure to ionizing radiation raising
the issue of service connection. There is no indication that
these radiation claims have been addressed by the RO, and
they are referred to that office for appropriate action.
Review of the record shows that in statements received in
April 1992 the veteran raised the issue of entitlement to
service connection for panic attacks, submitting a form from
his private physician stating that he was disabled from
working because of blind spells and panic attacks. The
veteran reported that the definition he had found of panic
attack in Taberís Cyclopedic Medical Dictionary was acute
intense anxiety and that symptoms included dyspnea, sweating,
vertigo, palpitation, chest pain, nausea, blurred vision,
dread, feeling that there would be loss of mental control and
feeling of approaching death. The veteran stated that this
definition fit his situation and that his complaints found in
his service medical records and in post-service medical
records along with the description of panic attacks went hand
in hand thereby raising the issue of entitlement to service
connection for panic attacks. In a May 1992 rating decision,
which also continued a prior denial of service connection for
eye disability, the RO determined that the evidence about
panic attacks with blurred vision was not new and material to
reopen a claim of service connection for a nervous disorder
denied by the Board in a January 1981 decision. The RO made
a general reference to this rating decision in its May 1992
supplemental statement of the case on the issue of service
connection for eye disability but did not inform the veteran
of its decision with respect to psychiatric disability, and
this matter is referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has visual disability resulting
from having been exposed to ionizing radiation from
participating in Operation CASTLE while serving aboard the
USS Nicholas. The veteran asserts that shortly after one of
the nuclear detonations he escorted some scientists in a
whale boat from the USS Nicholas to an island contaminated by
the blast. He states that when the scientists were ready to
return to the USS Nicholas, the whale boatís engine would not
start and that they had to wait for a boat to tow them back
to the ship. He asserts that when they returned to the ship,
their clothing and gear were destroyed indicating they were
exposed to excessive levels of radiation.
The veteran states that in late 1954 or early 1955 he began
to have trouble with his eyes and went to an eye doctor at
Pearl Harbor who told him his eyes were all right. The
veteran states that he told the eye doctor that he had
blurred vision off an on but did not tell him he had been
exposed to too much radiation. The veteran states that he
has continued to have the same attacks of blurred vision
since service to the present.
The veteran argues that VA has disregarded evidence in his
case including government guidelines for radiation exposure
reported in a newspaper article he submitted in support of
his claim. He contends that service connection for his
visual disability is warranted on the basis of his documented
participation in Operation CASTLE and the opinion of the VA
physician who stated that it was very likely that the nuclear
explosion in Operation CASTLE caused his visual problems.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against the claim for service connection for
visual disability.
FINDINGS OF FACT
1. All evidence necessary for an equitable decision has been
obtained by the RO.
2. There has been no demonstration of visual disability in
service, nor has there been demonstration of a causal
relationship between any visual disability and any incident
of service, including the ionizing radiation to which the
veteran was exposed during service.
CONCLUSION OF LAW
Visual disability was not incurred in or aggravated by active
service. 38 U.S.C.A. ßß 1110, 1131 (West 1991); 38 C.F.R.
ßß 3.303, 3.311 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteranís claim of
entitlement to service connection for visual disability is
well grounded within the meaning of 38 U.S.C.A. ß 5107(a)
(West 1991) in that it is at least plausible. The Board is
satisfied that all relevant facts have been properly
developed and that no further assistance to the veteran is
required to comply with 38 U.S.C.A. ß 5107(a).
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during service.
38 U.S.C.A. ßß 1110, 1131; 38 C.F.R. ß 3.303 Service
connection may be granted for any disease diagnosed after
discharge when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. ß 3.303(d). Service connection for
disabilities claimed to be the result of exposure to ionizing
radiation may be established under the provisions of
38 C.F.R. ß 3.311 unless service connection may be granted by
applying the presumptions of 38 U.S.C.A. ß 1112(c) (West 1991
& Supp. 1997) and 38 C.F.R. ß 3.309(d) (1996).
The veteranís service medical records are negative for
complaint, finding or diagnosis of visual disability. In a
May 1954 entry in the veteranís chronological record it was
reported that the veteran received .238 roentgens of gamma
radiation between March 1, 1954, and May 15, 1954. The
veteranís distant vision was 20/20 in each eye at his March
1957 service separation medical examination as it was at his
April 1953 enlistment medical examination. In each report
the physician noted that an ophthalmoscopic examination was
not done.
On a report of medical history, made for Reserve purposes in
April 1958, the veteran indicated that he had eye trouble,
and the physician elaborated that the veteran said his vision
blurred when he was overheated. The veteran stated that he
had worked with a radioactive substance, and the physician
reported that the veteran explained that he had been
overexposed to radiation for one-half hour during atomic
tests at Bikini in 1954.
In a March 1978 letter Thomas M. Roy, M.D., stated that the
veteran was primarily concerned about his future health and
whether there was going to be any long-term sequelae from his
exposure to radiation. Dr. Roy stated that the veteran
suffered spells of blurred vision which he had been unable to
place a label on.
In a March 1978 letter, the Director, Undersea Medicine
Division of the Bureau of Medicine and Surgery of the
Department of the Navy stated that radiation exposure records
in that Bureau recorded the veteran as having received 00.900
Roentgen between February 28, 1954, and May 17, 1954.
At a June 1978 VA eye examination, the veteran gave a history
of having been exposed to ionizing radiation in service. He
complained of intermittent blurry vision and said his vision
was otherwise normal. On examination, the veteranís distant
vision was 20/20 in each eye, and examination of the fundi
showed normal discs, macula and vessels. The physician
stated there were no cataracts. The diagnosis was normal eye
exam.
In a July 1978 report, Sander Goodman, M.D., reported that
the veteran currently complained of no symptoms except that
he felt that he had been aging rapidly. The veteran said he
had been losing hair and had blurring of his vision. The
veteran reported that he had similar symptoms within six
months after exposure to radiation in service but at that
time did not know their meaning. Dr. Goodman stated that on
physical examination the veteranís eyes were normal and fundi
were normal. Dr. Goodman noted that after the examination
the veteran still maintained that he had become prematurely
aged and that he had a number of weak spells and visual
difficulties as a consequence of exposure to radiation about
25 years earlier.
In a September 1978 letter, Dr. Goodman stated that he was
unable to arrive at a final diagnosis in regard to the
veteranís complaints. Dr. Goodman noted that the veteran
related his symptoms to radiation exposure but that he, Dr.
Goodman, could not support or deny this. In another letter,
also dated in September 1978, Dr. Goodman stated that he
could not relate the veteranís symptoms to radiation exposure
nor could he deny those symptoms could arise from radiation
exposure.
In a February 1980 letter to the Navy Nuclear Test Personnel
Review (NTPR), the Director, VA Administrative Service noted
that the veteranís service medical records contained an entry
of .238 Roentgen gamma radiation between March 1 and May 15,
1954, and that a March 1978 letter from the Navy Bureau of
Medicine and Surgery showed the veteran as having received
00.900 Roentgens between February 28 and May 17, 1954. The
Director, VA Administrative Service noted that the veteran
claimed that as part of his participation in Operation CASTLE
he was on a boat that was stranded on an atoll which was the
site of a detonation and extensive decontamination was
required. The letter requested confirmation of the veteranís
presence and nature of his duties at a nuclear test along
with the recorded level of his radiation exposure or the
reconstructed exposure for his unit in the absence of an
individual exposure record.
In its March 1980 response, the Navy NTPR confirmed that the
veteran served aboard USS Nicholas during Operation CASTLE, a
six detonation atmospheric nuclear test series which took
place form March through May 1954, and provided copies of
February 27 through May 15, 1954, deck logs for USS Nicholas.
NTPR described the activities of USS Nicholas during
Operation CASTLE and provided details of March 1954 incidents
resembling the situation the veteran had described regarding
having been stranded on an atoll. NTPR stated it was not
known, however, whether the incident described was the one to
which the veteran referred. NTPR stated that all of the USS
Nicholas crew were badged for Operation CASTLE and that the
veteranís recorded radiation exposure was 0.9 rem gamma but
noted that there was a statement on the dosimetry sheet for
USS Nicholas that an additional 500 millirem had been
included in the total radiation exposure for shipís personnel
because the issue sheet had been made out incorrectly prior
to April 4, 1954. NTPR stated that it had not been
ascertained whether special considerations were made for the
people who served as working party personnel on contaminated
islands. NTPR stated that research was continuing in an
attempt to document the veteranís statement and that a
follow-up letter would be sent.
In an April 1990 memorandum to the RO, the Director of the VA
Compensation and Pension Service stated that the total
exposure of 0.9 rem gamma recorded for the veteran included
the additional 500 millirem (0.5 rem) of exposure to
compensate for any error.
In a letter dated in late April 1990, NTPR stated that
continuing research had revealed some additional information
concerning a whaleboat incident at Rongelap in late March
1954. It described the incident as one where the whaleboat
visited Kabelle and other Rongelap Islands. The survey group
returned to the whaleboat at dusk and set out in the lagoon
to find Nicholas, which had left the lagoon to avoid night
passage through a difficult channel. As the whaleboat
reached open water, its engine failed and it was carried back
toward the coral reef but was eventually towed back to the
ship by the shipís gig. NTPR stated that even if the veteran
had been a part of the survey crew on the whaleboat, he was
not stranded on Kabelle or any other island because the
whaleboatís engine malfunction occurred enroute to Nicholas.
NTPR concluded that as a result the veteran probably would
not have encountered an excessive dose since all survey teams
were issued Geiger counters so as to avoid contamination.
In a May 1980 memorandum to the RO, the Director of the VA
Compensation and Pension Service referred to the April 1980
NTPR report and stated that there was no reason to believe
that the veteranís exposure exceeded the 0.9 rem gamma
previously reported.
In a May 1980 letter to the veteran, NTPR stated that it had
found that he received a 0.9 rem radiation dose between
February 28 and May 17, 1954.
In a Cincinnati Neurological Associates, Inc. letter dated in
March 1980, Thomas G. Brott, M.D., noted that the veteran had
stated that in 1954 he had been on an island in the South
Pacific where there had been a nuclear explosion. The
veteran said he was on the island for several hours and was
stranded such that he was on the island one-half hour longer
than he should have been. The veteran stated that since that
time he had had episodic symptoms consisting of weakness,
occasional blurred vision, some difficulty walking and a
trance-like sensation which would last several minutes to a
half hour and then would pass leaving him with a sensation of
fatigue. He reported that these symptoms had occurred
periodically since 1954 but had increased recently. Dr.
Brott examined the veteran and stated that he saw no evidence
for any structural disease of the nervous system and doubted
that the veteran had a seizure disorder or any other
paroxysmal neurologic disorder. In addition, he stated that
he doubted that the veteran had any physical consequences
from his alleged radiation exposure.
In a May 1980 letter, Jerry R. Crabbs, M.D., stated that the
veteran had been a patient at his office since September 1972
when he was seen with a superficial laceration on his chin.
He was next seen in January 1975 when he had many complaints
which he related to being exposed to radiation in service.
Dr. Crabbs stated that since coming under his officeís care,
especially since 1975, the veteran had expressed a real
concern about possible over exposure to radiation in service.
He stated that the veteran felt he had had premature aging
due to radiation exposure and reported he had had some visual
problems in the past. The veteran also reported syncopal
episodes, occasional nausea, respiratory distress and
frequent fatigue. Dr. Crabbs stated that he ran laboratory
tests and had tried to explain to the veteran that his
symptomatology was not definitive and his were general
complaints that could fit many different illnesses and could
even be the result of a nervous disorder or emotional
problem. Dr. Crabbs stated there was no way he could
evaluate the veteranís symptomatology any further and there
was no way he could state that the symptoms were caused
directly or indirectly by exposure to radiation.
At a VA eye examination in May 1980, the veteran gave a
history of blindness associated with lights and lasting
several minutes. He complained of anxiety during these
periods. On examination, the iris and lens were normal in
both eyes; the veteranís best corrected distance vision was
20/20 in each eye. On examination of the fundi, the discs,
vessels and maculae were normal in both eyes. The impression
was normal eye exam and early presbyopia. The physician
recommended a neurologic evaluation and noted that the
veteran would need reading glasses soon.
At a May 1980 VA neuropsychiatric examination, the veteran
gave a history of having been exposed to radiation when he
was stranded for about a half hour on an island after an
atomic bomb blast. The veteran complained that he was now
suffering visual difficulties and episodes of shortness of
breath and light headedness. The physician noted that the
veteran did not date the onset clearly. The veteran reported
that the visual troubles occurred with horizontal jagged
bright lines and dark spots in his vision which lasted for
several minutes. He said they came from the left and then
all vision dimmed. He said he also had attacks of shortness
of breath daily during which he felt weak and faint for 10 to
15 minutes. He said his heart pounded irregularly and he
felt scared and light headed. After mental status
examination and neurological evaluation, the impression was
no evident neurological deficit and mild chronic anxiety with
episodes that sounded like acute anxiety.
Clinical records from Del A. Burchell, M.D., dated from March
1983 to June 1992, show that in September 1988 the veteran
gave a history of radiation exposure in 1954 and reported
that shortly after that spells with his eyes crossing began.
At a May 1993 deposition, Dr. Burchell testified that in
September 1988 the veteran further elaborated that at times
he also had some spells where he would notice spots around
the outside or periphery of his vision.
Emergency room records from Berea Hospital, Inc. show that
the veteran was seen on May 13, 1990. He reported that while
he was at work on a train earlier that day dust blew up into
his eyes; he complained of something in his left eye, a
feeling of grit in his right eye and of blurry vision.
Examination revealed a small subconjunctival hemorrhage in
the left eye at about 8 oíclock. Visual acuity was 20/70
left eye and 20/20 right eye. The diagnosis was foreign
material in the eyes, subconjunctival hemorrhage, left. The
eyes were irrigated and the left eye was patched. The
veteran was instructed to keep his left eye covered for 12 to
24 hours and to see his family doctor for a re-check.
Clinical records from Dr. Burchell dated in late May 1990
show that the veteran reported that earlier that month he had
an accident where a flush of air sprayed his eyes with debris
and he had had these flushed out. He reported that he had
been seeing Dr. Levin.
A VA medical certificate shows that the veteran was seen on
February 7, 1991, and stated that he felt he was losing sight
in the center of his eyes and color vision. He gave a
history of exposure to radiation in 1954 and reported
increasing frequency of loss of central vision bilaterally
lasting 10 minutes. The diagnosis was visual difficulties.
Clinical records from Dr. Burchell show that the veteran came
into his office February 7, 1991, complaining that his color
vision faded in and out. The veteran was advised to have his
color vision evaluated by an eye doctor.
A report from John A. Reeves, M.D., shows that he examined
the veteran February 11, 1991. The veteran complained of
fluctuation of acuity and color vision. Dr. Reeves stated
that the examination was normal except for a solitary flame
hemorrhage near the right disc. The veteranís distance
vision with correction was 20/20 in each eye, and his color
vision was normal. Dr. Reeves suggested that the veteran see
his family physician concerning a possible transient cerebro-
ischemic problem.
In a March 1991 letter to Dr. Burchell, Richard D. Levin,
M.D., stated that the veteran had requested that a report be
sent concerning his office visits on May 14 and May 18, 1990,
and that the veteran had asked that his visits on May 19,
1990, and February 1, 1991, be excluded from the report. Dr.
Levin stated that the veteran was seen in his office on May
14, 1990, and had a small sub-conjunctival hemorrhage on the
left eye and staining of the cornea from a secondary corneal
abrasion. Intraocular pressures and vision were recorded as
normal. He was given eye drops and antibiotics. Two days
later he returned stating his eye felt better but complained
of a little hurting of the right eye. There was a small
corneal staining on the right eye, but resolving inflammation
overall. Vision was recorded again as 20/20. The veteran
was seen on May 18, 1990, and stated that his eyes felt a
little blurry and they were mattered up. The corneas were
reported as clear, the sub-conjunctival hemorrhage was
recorded as smaller and vision was recorded as 20/20. The
veteran was told to return if he had any further problems.
In an April 1991 statement, a VA physician reported that she
had seen the veteran for the first time on February 7th. She
stated that the veteran very accurately described a problem
with his vision which corresponded to destruction of his
fovea. The physician stated that the veteran reported that
his vision problems began in 1954 after he was exposed to a
nuclear explosion in Operation CASTLE. The physician stated
that it was very likely that the nuclear explosion caused the
veteranís visual problem. She stated that she had referred
the veteran to University Hospital where his ophthalmologist
was running further tests to assess the veteranís visual
deficits. The VA physician suggested contacting the
ophthalmologist at the university for further pertinent
information.
In an undated statement received in April 1991, the veteranís
wife reported that on February 7, 1991, the VA physician who
had seen the veteran about his eyes that day telephoned and
said that the veteran was not to drive a train or car until
his problem was resolved. The veteranís wife reported that
the physician said she had discussed the problem with other
doctors at the VA hospital and they agreed with her. The
veteranís wife also reported that the physician said there
was a possibility that the back of the veteranís eyes were
burned during one of the atomic explosions and she wanted him
to go to University Hospital for further evaluation. The
veteranís wife also indicated that the veteran had seen a Dr.
Leering at University Hospital February 13, 1991, and that he
had said in the right eye it looked like there was bleeding
from blood vessels in the back. She reported that Dr.
Leering stated that the veteran should not work at least
until after tests which would be done in March 1991.
In a May 1991 letter, P. Leering, M.D., of the University of
Cincinnati Ophthalmology Clinic reported that he had seen the
veteran in February 1991. The veteran gave a history of
exposure to radiation in 1950sí A-bomb testing. He
complained of intermittent blurring of vision, especially
centrally, with color vision problems, over the last 10 to 20
years. He said the problem had been getting worse in the
last few months. He reported that the episodes lasted about
5 minutes and occurred about twice a week. Clinical records
show that on examination, Dr. Leering noted a few macular
drusen and a small nerve fiber layer hemorrhage on the right.
Visual acuity with correction was 20/20 in both eyes. The
impression was disc normal, both eyes, minimal senile macular
degeneration and rule out chorioretinal artery microaneurysm.
Additional clinical records show that the veteran was seen in
March and April and multiple laboratory tests and studies
were done. In his May 1991 letter, Dr. Leering stated all of
the multiple laboratory studies were normal including CBC
with differential, antinuclear antibody, sedimentation rate,
carotid Doppler studies, syphilis serology, chest X-ray,
renal profile and SPEP. A fluorescein angiogram revealed
only some pigmentary changes at the macula consistent with
age-related macular degeneration. Goldmann visual fields
were normal in both eyes. Dr. Leering stated that he had
followed the veteran over the ensuing two months and the
veteran denied any change in his condition. Color vision by
objective testing remained normal. Dr. Leering stated that
he reviewed the case with the staff neuro-ophthalmologist,
Dr. Sacks, and neither of them could come up with a
reasonable explanation for the veteranís complaints. Dr.
Leering recommended neurologic consultation.
Outpatient records from the University of Cincinnati Hospital
show that the veteran was seen in the neurology clinic in
June 1991. The veteran complained of continuing episodes of
temporary blindness. He gave a history of exposure to a
nuclear explosion in 1954 after which he noted the onset of
blurry vision and gave a history of debris in his eyes a few
months prior to being seen in the clinic. After review of
prior test and laboratory results and examination, the
impression was subjective visual spectra. The physician
commented there was a question as to whether spectra could
represent occipital lobe seizure or migraine aura without
headache. It was later noted, and reports show, that an
electroencephalogram was normal and that a magnetic resonance
imaging study of the brain was normal. When the veteran was
seen in September 1991 and January 1992, it was noted that
his symptoms remained nonfocal, and the impression was visual
spectra. The physician commented that he suspected acephalic
migraine. Calan and aspirin were prescribed.
A VA outpatient record shows that the veteran was seen in an
eye clinic in July 1991. The veteran complained of transient
episodes of loss of vision and vision blacking out involving
partial or full fields of both eyes. He reported that the
episodes occurred without neurological signs or symptoms,
lasted 5 to 10 minutes and occurred 2 to 4 times a week. He
gave a history of an accident at work a year earlier when
ďtrashĒ got into his eyes.
In an August 1991 insurance statement, Dr. Leering certified
that the veteran was unable to work due to intermittent loss
of vision in both eyes, and in March 1992 he certified that
the veteran was unable to work due to intermittent subjective
blind spells in both eyes.
Dr. Burchellís clinical records show that in August 1991 he
noted that the veteran had been out of work since February
for ďblind spellsĒ and that a neurologist thought it was
migraine and the veteran thought it was secondary to his work
accident in 1990. The veteran reported he was seeing a
psychiatrist who thought perhaps panic attacks were causing
his problems. In a March 1992 insurance statement, Dr.
Burchell certified that the veteran was unable to work due to
blind spells lasting 5 to 10 minutes, panic attacks.
At a January 1992 hearing at the RO, the veteran testified
that the first time he recalled having any kind of eye
problems was after the nuclear testing in 1954. He testified
that he first started having nausea, fainting spells and then
the blurred vision. He testified that back in 1981 around
the time of his original claim he was having blurred vision
at least once a week and it would last approximately 10 to 15
minutes. The veteran testified that he had retired from the
railroad in August 1991 after his problems had become more
acute having gotten to the point that he was unable to
distinguish color and was having intermittent blindness. He
testified that the intermittent blindness spells lasted 5 to
10 minutes and occurred at least twice a week but had since
reduced in frequency. He testified that he went to a VA
physician who examined him and after talking to other VA
doctors told him that they felt he was injured at the time of
the nuclear testing. He testified that the blurred vision
had been going on ever since the nuclear explosion in service
and the color distortion and the intermittent blindness did
not occur until the May 1990 injury when debris blew into his
eyes. The veteran testified that he was retired from the
railroad on disability for his eyes based on the May 1990
incident.
In March 1992, the veteran submitted three newspaper articles
to the RO. A Cincinnati Enquirer February 1992 article
titled, ďRadiation limits drop drastically,Ē states that the
federal governmentís permissible limit for persons working
near radiation had fallen to 5 rems a year from 52 rems a
year in 1920. The article also stated that the limit for the
public was 0.1 to 0.5 rems a year according to the National
Academy of Sciences. A Kentucky Post February 1992 article
titled, ďLawyers fighting $10 cap on fees in veteransí
cases,Ē states that a federal court struck down as
unconstitutional the statute limiting attorneys fees to $10
in cases of veterans seeking VA benefits based on ionizing
radiation claims. An October 1992 Cincinnati Post article
titled, ďPaul V. Krumpelman of Taylor Mill, 58, saw first
hydrogen bomb blast,Ē is an obituary of a veteran who
reportedly died of an apparent heart attack. He was noted to
have had skin cancer for which VA denied service connection
but gave him medical treatment. The article includes
descriptions of the veteran having witnessed nuclear blasts
in service as related by his widow.
In a March 1992 Cincinnati Neurological Associates, Inc.
letter, James P. Farrell, M.D., reported that he had seen the
veteran who gave a history of a May 1990 accident at work
where shrapnel or debris exploded into his eyes. The veteran
said that since that time he had had intermittent blind
spells lasting 5 to 10 minutes. He said his vision would
start to get dark and his central vision would be
particularly dark while he saw colors around the outside. He
said this occurred while sitting or standing, but did not
occur while he was lying down. He said he still had these
episodes two times a week. Dr. Farrell described his
examination and stated that he did not suspect there was any
specific neurologic problem causing the spells. He noted
that the spells came on rather suddenly after the injury to
his eye and had persisted on a frequent basis since that
time. Dr. Farrell stated that this would be very unusual for
any transient ischemic attacks or even migraine equivalents.
He stated that it was quite possible that these were
conversion symptoms. He stated that he could not understand,
on a neurologic basis, how the veteranís symptoms would be
related to an injury to his eyes themselves.
In a May 1992 letter, Dr. Farrell stated that he had received
the veteranís records from the University of Cincinnati and
again went over the veteranís history with him. The veteran
said he had an eye injury in May 1990 when debris flew under
his safety glasses and punctured his left eye. He stated
that within several days to a week he started having episodic
spells where he would lose his vision in each eye lasting
about five minutes. He said he was having these twice a day
before he quit the railroad in February 1991 and since then
the frequency had gone down to two to three times a week.
Dr. Farrell stated that he still believed that these were
more likely conversion symptoms. He noted they happened very
soon after an injury to the veteranís eyes and were, in his
judgment, too frequent to be migraine or transient ischemic
attacks.
In an October 1992 ophthalmology report, Leonard Jacobson,
M.D., stated that the veteran gave a history of May 1990
injuries to his eyes which consisted of foreign particles
blowing up into the eyes from an air or steam hose. Dr.
Jacobson noted that the veteran received treatment, and
subsequent to that developed what the veteran described as
intermittent blind spells which could last up to 15 minutes.
Dr. Jacobson reported that the veteranís visual acuity
without correction was 20/60 in each eye. With correction,
distance vision was 20/20 and near vision was 20/20 with the
appropriate reading add. After ophthalmology examination,
Dr. Jacobson stated that the diagnosis was that no definite
eye pathology except for glasses was found. He said that the
symptoms appeared to be vascular in nature possibly of the
migraine type but there was no way that he could rule out
conversion and this could be considered. Dr. Jacobson
commented that the veteranís eyes appeared to be in good
health with no physical problem except for glasses.
Clinical notes from Dr. Burchell show that in March 1993 the
veteran complained of intermittent blind spells and in July
1994 said he still had episodes of blurred vision once a
month.
The record includes transcripts of depositions taken in April
and May 1993 from several physicians who were witnesses in a
lawsuit by veteran against CSX Transportation, Inc. for whom
he had worked as a locomotive engineer until February 1991.
At his April 1993 deposition, Dr. Jacobson, an
ophthalmologist, testified that in October 1992 he did a
complete medical eye examination of the veteran with complete
evaluation of his vision, the anterior part of the eye, the
retina, his intraocular pressure and visual fields. The
findings were primarily negative, and his vision was 20/20 in
both eyes near and distant with the appropriate correction.
Dr. Jacobson testified that he found no specific physical
problem with the veteranís eyes and that it was his
impression that the veteranís symptoms as he related them
could be a vascular spasm, perhaps migraine, or conversion
reaction could be a possibility.
At his May 1993 deposition, Dr. Farrell, a neurologist,
testified that he had seen the veteran in April 1989 with
complaints of nervous tension and that he also saw him in
March and May 1992. Dr. Farrell testified that at that time
the veteran reported his symptoms were episodic loss of
vision lasting anywhere from 5 to 10 minutes. Dr. Farrell
testified that examination of the veteran was essentially
normal including examination of the eyes and that from his
point of view as a neurologist there was no disease in the
nervous system accounting for the veteranís symptoms. He
testified that it was his opinion that migraines or transient
ischemic attacks were highly unlikely given the
characteristics and reported frequency of the veteranís
symptoms and that it was his opinion that the veteran had a
conversion reaction to the May 1990 eye injury.
At his May 1993 deposition, Dr. Burchell, an internist,
testified that he had first seen the veteran in 1983 and that
in September 1988 the veteran reported symptoms of his eyes
seeming to cross at times and having spells where he would
notice spots around the outside or periphery of his vision.
He testified that in late May 1990 the veteran reported that
earlier that month a flush of air sprayed his eyes with
debris, that his eyes had been flushed out and he had been
seen by Dr. Levin. Dr. Burchell testified that an office
note from his partner indicated that on February 7, 1991, the
veteran complained of color vision fading in and out. Dr.
Burchell testified that in August 1991 the veteran reported
that he had been out of service since February for blind
spells and that he lost vision for 5 to 10 minutes, dark in
center and saw color and light in outer rings. Dr. Burchell
testified that it was his belief that the veteran perceived a
difference in his vision after his May 1990 accident and that
that difference in vision could be related to that accident.
He testified that the changes that occurred after the May
1990 injury with regard to the veteranís vision symptoms fit
a pattern of a conversion reaction and were related to that
incident.
At his May 1993 deposition, James L. Titchener, M.D., a
psychiatrist, testified that he had first seen the veteran in
early 1989 and saw him fairly regularly for a year and a
half, then hardly at all until recently. He testified that
the history recently provided by the veteran included vision
problems after an accident in May 1990. He testified that
the veteran reported that following his return to work after
the accident he noticed color blindness during operation of
his locomotive and then had episodes of bilateral or
unilateral blindness that lasted a minute or more, in the
beginning occurring two or three times a week and later
occurring once every two weeks. Dr. Titchener testified that
his diagnosis for the veteran was dissociative reaction
manifested by visual problems and that the dissociative
reaction came from the railroad injury of May 1990. Dr.
Titchener testified that assuming that the veteran had
identical symptoms prior to 1990 would not affect his
opinion.
In a December 1994 letter, the RO requested that the Defense
Nuclear Agency (DNA) provide radiation dose information for
the veteran during Operation CASTLE. In a July 1995 letter,
DNAís NTPR Radiation Sciences Directorate reported that naval
records confirmed that the veteran was present at Operation
CASTLE and was assigned to USS Nicholas. DNA further stated
that a careful search of dosimetry data revealed a recorded
dose of 0.400 rem gamma for the veteran. DNA went on to say
that in addition a scientific dose reconstruction titled
Analysis of Radiation Exposure for Naval Personnel at
Operation CASTLE (DNA-TR-4-6) indicated that the veteran
would have received a probable additional dose of 0.706 rem
gamma. DNA said this dose had an upper bound of 1.5 rem
gamma. DNA also said that the scientific dose reconstruction
titled Neutron Exposure for DoD Nuclear Test Personnel (DNA-
TR-84-405) indicated that due to the distance of the
veteranís unit from ground zero, he had virtually no
potential for exposure to neutron radiation.
At an October 1995 VA examination, the examiner noted that
the veteran had a long history of visual complaints. He
complained of intermittent visual loss which occurred in
either or both eyes. He said it started gradually and he
noted a visual field deficit that became darker and more
dense slowly over 15 to 20 minutes and occasionally would
cause total loss of light perception either in one eye or in
both eyes at the same time. On examination, visual acuity
with correction at distance was 20/20 in each eye. Visual
acuity without correction at distance was 20/60 in the right
eye and 20/70 in the left eye. Near visual acuity with
correction was Jaeger one in the right and Jaeger one plus in
the left. Near visual acuity without correction was Jaeger
16 in the right and Jaeger 16 in the left.
The examiner stated the visual fields were full to
confrontation in both eyes. Extraocular movements were full
and muscle balance was orthophoric. Slit lamp examination of
the interior segments revealed lids, lashes and conjunctivae
to be normal. The corneas were clear and compact, the
anterior chambers were deep and quiet and the irides were
normal. Intraocular pressures were 19 millimeters of mercury
in the right and 21 millimeters of mercury in the left.
Dilated funduscopic examination revealed a cup-to-disk ration
of 0.35 in each eye with a normal vitreous cavity and a tiny
chorioretinal scar in the periphery of the left eye. There
were very early retinal pigment epithelial changes in the
maculae. The impression was very early age-related macula
degeneration. The examiner stated there was no evidence of
cataractous changes, particularly posterior subcapsular
cataractous changes that would be consistent with radiation
induced damage. He further stated that the veteranís
symptoms of intermittent visual loss did not fit any known
disease pattern with the exception that if he were to have
profound intracranial atherosclerotic arterial disease with
very poor ocular profusion, it was possible that he could
have momentary visual blackouts in either one or the other
eye. The examiner went on to say that this problem would not
in all likelihood be related to any exposure to ionizing
radiation. The examiner stated that it was his opinion that
the veteran did not have any evidence of ocular or visual
problems or deficits from any past history of ionizing
radiation exposure.
In a June 1997 memorandum, the RO referred the case to the
Director of the VA Compensation and Pension Service and
requested an opinion recommending either allowance or denial
of the claim. In a July 1997 memorandum, the Director of the
VA Compensation and Pension Service referred the veteranís
claims files to the VA Under Secretary for Health for an
opinion as to the relationship between his exposure to
ionizing radiation in service and the development of visual
disability.
In a July 1997 memorandum to the Director of the VA
Compensation and Pension Service, the VA Chief Public Health
and Environmental Hazards Officer noted the radiation dose
information provided by DNA and VA medical information
concerning the veteran. It was noted that the veteran
described a number of visual complaints which a VA general
medical physician felt were very likely to have been caused
by the nuclear test in which the veteran participated. It
was further noted that a detailed VA visual examination
failed to document any eye disease that could explain the
veteranís visual symptoms although the examiner noted that
profound intracranial atherosclerotic arterial disease with
very poor ocular profusion could result in momentary visual
blackouts. Citing Mettler and Upton, Medical Effects of
Ionizing Radiation, 226, 243-44 (2nd ed. 1995), the VA Chief
Public Health and Environmental Hazards Officer stated that
radiation can result in damage to the vascular system of the
brain and may play a role in the development of
atherosclerosis. She stated that such damage would be an
example of a deterministic effect. Citing Institute of
Medicine Report, Adverse Reproductive Outcomes in Families of
Atomic Veterans: the Feasibility of Epidemiological Studies
23-24 (1995), she went on to say that deterministic effects
generally are considered to have a threshold, and for most
healthy individuals the probability of causing harm will be
close to zero at doses of less than 10 rem. She stated that
in light of the above it was her opinion that it was unlikely
that the veteranís visual symptoms could be attributed to
exposure to ionizing radiation in service.
In a memorandum dated in late July 1997, the Director of the
VA Compensation and Pension Service stated that she had
received a medical opinion from the Under Secretary for Heath
that advised it was unlikely that the veteranís visual
symptoms could be attributed to ionizing radiation in
service. The Compensation and Pension Service Director
stated that as a result of this opinion and following review
of the evidence in its entirety, it was her opinion that
there was no reasonable possibility that the veteranís
disability was the result of such exposure.
Following review of the entire evidence of record, it is the
Boardís judgment that the preponderance of the evidence is
against the veteranís claim. The veteran contends that he
has blurry vision which started in service after his
participation in Operation CASTLE and he argues service
connection should be granted for visual disability which he
believes is due to exposure to ionizing radiation from those
nuclear tests. The veteran has stated that he sought
treatment for blurry vision when he was at Pearl Harbor after
Operation CASTLE but that he was told his eyes were all
right. Assuming this to be true, though not substantiated by
service medical records, the Board notes that at his
separation examination in March 1957 the veteran did not
mention blurry vision and his distant vision was 20/20 in
each eye. In April 1958, the veteran gave a history of eye
trouble, but in the elaboration that the veteran had blurry
vision when overheated, neither the physician nor the veteran
related the problem to service.
Although post-service medical records, examination reports
and letters from physicians including ophthalmologists and
neurologists dated from 1978 to 1988 show that veteran
complained of visual problems including blurry vision which
he related to exposure to radiation in service, none of the
medical professionals diagnosed the veteran as having
neurological disease or disorder or any visual disability
other than early presbyopia. Further, none of the physicians
related the veteranís complaints, including blurry vision, or
the prospective need for reading glasses to service or any
incident of service including exposure to radiation.
The newspaper articles submitted by the veteran do not bear
directly on the veteranís claim, and the veteranís testimony
as to the cause of his visual symptoms is not probative
because he, as a lay person, is not competent to furnish
medical opinions or diagnoses. See Espiritu v. Derwinski, 2
Vet App. 492, 494-95. The only medical evidence in support
of the veteranís claim is the April 1991 statement of a VA
physician who reported that she had first seen the veteran in
February 1991 and that he described a problem with his vision
which corresponded to destruction of the fovea. The
physician stated that it was very likely that exposure to a
nuclear explosion in 1954 caused the veteranís visual
problems. The record shows, however, that none of the other
physicians, including ophthalmologists, who saw the veteran
in February 1991 or thereafter has identified any objective
visual disorder other than age-related macular degeneration
or refractive error, which, according to 38 C.F.R.
ß 3.303(b), is not a disability VA purposes. Multiple
private physicians, including ophthalmologists, neurologists
and a psychiatrist have examined the veteran and have
suggested that the veteranís symptoms could be related to a
vascular spasm, transient ischemic attacks, migraine or
dissociative reaction or conversion reaction to his May 1990
work-related eye injury, but notwithstanding the veteranís
repeated reference to radiation exposure in service, none has
related any of the possible diagnoses or the veteranís
symptoms to service or any incident of service including
participation in the nuclear tests in Operation CASTLE.
Most recently, in October 1995, a VA examiner who did a
complete eye examination specifically noted that the
veteranís symptoms did not fit any known disease pattern
except if he were to have profound intracranial
atherosclerotic arterial disease with very poor ocular
profusion, and the examiner specifically stated that it was
his opinion that this problem would not be related to any
exposure to ionizing radiation. The Board notes that
intracranial atherosclerotic arterial disease in not a
disease for which service connection may be granted on a
presumptive basis under 38 U.S.C.A. ß 1112(c) and 38 C.F.R.
ß 3.309(d). Further, when requested to review the record as
outlined in 38 C.F.R. ß 3.311, the VA Chief Public Health and
Environmental Hazards Officer considered radiation dose
information for the veteran provided by DNA and compared it
with quantitative data from published studies and concluded
that it was unlikely that the veteranís visual symptoms could
be attributed to exposure to ionizing radiation in service.
It is the Boardís judgment that the single medical opinion
relating visual disability to the veteranís participation in
Operation CASTLE is outweighed by all of the remaining
evidence which either does not support or is clearly against
the veteranís claim. In particular, the Board gives greater
weight to the detailed October 1995 VA eye examination and
opinion and the opinion of the VA Chief Public Health and
Environmental Hazards Officer which are well reasoned and
persuasive.
For the foregoing reasons, the Board finds that there has
been no demonstration of visual disability in service, nor
has there been demonstration of a causal relationship between
any visual disability and any incident of service, including
the ionizing radiation to which the veteran was exposed
during service. The Board therefore concludes that service
connection for visual disability is not warranted.
ORDER
Service connection for visual disability is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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